[2023] KEELRC 818 (KLR)
The court found that the preliminary objection raised by the respondent was vague, lacked precision, and did not constitute a pure point of law as required by established legal principles. Upon perusal of the pleadings, the court concluded that it had jurisdiction to hear and determine the matter, as the issues...
Source-derived case information.
- Citation
- [2023] KEELRC 818 (KLR)
- Parties
- Applicant: Peter Kioko Kitheka; Respondent: Equity Bank (K) Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E622 of 2021
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs to the claimant
- Judges
- MN Nduma
- Legal Topics
- Unlawful Termination, Jurisdiction of Elrc, Preliminary Objection, Constitutional Rights in Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kioko Kitheka
Applicant
Equity Bank (K) Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear and determine the claimant's suit.
- 2 Whether the preliminary objection raised by the respondent meets the threshold of a pure point of law.
- 3 Whether the preliminary objection is sufficiently precise and capable of disposing of the matter without ascertaining facts.
Ratio Decidendi
The court found that the preliminary objection raised by the respondent was vague, lacked precision, and did not constitute a pure point of law as required by established legal principles. Upon perusal of the pleadings, the court concluded that it had jurisdiction to hear and determine the matter, as the issues pertained to employment and alleged unlawful termination. The preliminary objection was therefore misconceived and amounted to an abuse of the court process. Consequently, the preliminary objection was dismissed with costs awarded to the claimant.
Court Disposition
preliminary objection dismissed with costs to the claimant
Orders
- The preliminary objection dated September 15, 2022 is dismissed.
- The respondent shall pay the costs of the preliminary objection to the claimant.
Full Case Text
Judgment text and source record
20 paragraphs
Kitheka v Equity Bank (K) Limited (Cause E622 of 2021) [2023] KEELRC 818 (KLR) (23 March 2023) (Ruling)
Neutral citation: [2023] KEELRC 818 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E622 of 2021
MN Nduma, J
March 23, 2023
Between
Peter Kioko Kitheka
Claimant
and
Equity Bank (K) Limited
Respondent
Ruling
1. The suit was filed on August 2, 2021 by a Statement of Claim of even date in which the claimant pleads that he was an employee of the respondent until August 6, 2018 when his employment was unlawfully terminated. He prays for various reliefs including the equivalent of 12 months’ salary in compensation for the unlawful dismissal. He prays for damages for the breach of his constitutional rights under Section 27, 41, 47 and 50 of the Constitution. He prays for costs of the suit.
2. The respondent filed a notice of preliminary objection to the claim dated September 15, 2022 to wit:-1. This Honourable Court lacks the requisite jurisdiction to entertain, hear, determine and/or grant the orders sought against the Respondent.2. The application filed offends Section 12 of the Employment and Labour Relations Court Act, 2011. 3.The suit is incompetent, fatally defective, utter abuse of the Court process and a waste of the precious judicial time.
3. The parties filed submissions on the Preliminary Objection.
4. The Court finds outrightly that the Preliminary Objection is vague, lacks precision and is not a pure point of law as defined in Mukisa Biscuit Manufacturing Company Limited v West end Distributors Limited (1969) EA 696 and as restated in the case of Margaret Nyiha Gatambia & 2 Others v Peninah Ngechi Njaaga & 3 Others [2019] eKLR thus:-“When preliminary points are raised, they should be capable of disposing the matter preliminarily without the Court having to result to ascertaining the facts from elsewhere apart from looking at the pleadings.”
5. Indeed a perusal of the pleadings in this matter leads the Court to the conclusion that this Court has jurisdiction over this matter. The Preliminary Objection is misconceived and an abuse of the Court process. The same is dismissed with costs.
DATED AND DELIVERED AT NAIROBI (VIRTUALLY) THIS 23RD DAY OF MARCH, 2023. MATHEWS N NDUMAJUDGEAppearancesMr Kimathi for respondentM/s Chimei for the claimantEkale – Court Assistant